Eric Rasmusen's Weblog

I take a conservative, evangelical, economistical look at things. I will be posting intermittently, for reference rather than daily reading.
My Wordpress site from before 30 September 2007 is at http://rasmusen.org/x. It is searched from the search engine below(not above).

Thursday, April 30, 2009

Marxists Obituarized Admiringly: Andrew Glyn

Andrew Glyn is not a household name, and until I read his obituary yesterday in The Times of London I had never heard of him. But what an illuminating document that obituary proves to be, a perfect little insight into the age. The opening sentence informs that Glyn “was one of Britain's most prominent Marxist economists who produced searching critiques of capitalism,” going on to salute him as “one of the finest of Oxford dons.”... Think of the abuse of privilege. Think of the false pretences. Think of the damage he did spouting rubbish year after year to students who would be expected to parrot it back to him. To one student, he is supposed to have said, “the three greatest men who ever lived were Lenin, Trotsky and Charlie Parker,” - a sentence that the obituary writer hilariously links to “his depth of knowledge.” Some of the unfortunate students will have recovered freedom to think for themselves, but some will be permanently damaged. The obituary writer does in the end concede that Glyn “will to some extent be deemed to have backed the wrong ideological horse” — that “to some extent” is a qualification that goes so far beyond hilarious that it is almost majestic.

Dr. Stern writes in an AER article:

This is dedicated to my close friend,
distinctive and distinguished economist and fine man,
Andrew Glyn, who died on December 22, 2007, and whose
funeral took place in Oxford, UK, on the same day as the
Ely Lecture, January 4, 2008.

I decided to delete my strong comments on Dr. Glyn. I don't believe in De mortuis nil nisi bonum,
but I don't know why he was divorced. I am skeptical, though, of how good and kind a person is if I then discover that he is divorced. Lots of people are charming when being charming has low cost and aids their social position, but cheat on their wives, molest their children, and neglect their parents.

I also think it is important not to praise someone as a good teacher when he teaches pernicious rubbish, even if he teaches it persuasively. A person can be nice and still be a Leninist, just as he can be nice and still be a Nazi. The comparison is by no means too strong. In fact, there is much more excuse for someone who was a Nazi in the 1930s than a Leninist in the 1980s. In the 1930's the Nazis were thuggish and autocratic, but the horrors of WW 2 and the Holocaust were still to come. By now the excesses of Communism-- not just the political murders, but the millions killed by collectivization-- are well known. In fact, even by 1922 the crimes of Lenin and Trotsky were well known. I can understand why Communists would praise Dr. Glyn, but those of us who fall into one of the categories of people his heroes liked to kill shouldn't praise him.

The largest model rocket ever

From Steve Sailer comes a quote from a Wolters book saying that Coleman concluded that segregation hurt black students, but not because it resulted in lower spending per black pupil. Rather, it was because it prohibited white teachers from teaching black students. I wonder how big the effect of teacher measurable ability is?

Coleman's dismay was compounded by another correlation that emerged from the data. Both black and white children seemed to do better on tests if their teachers had done well on a standard test of vocabulary. This was especially problematical because black teachers were "on the whole less well prepared, less qualified, with lower verbal skills, than their white counterparts." This led to "the conjecture that [students] would do less well on average under black teachers than under white teachers." If so, "a major source of inequality of educational opportunity for black students was the fact they were being taught by black teachers." Yet this possibility was so heterodox that the Coleman report did not pursue the matter. In 1991 Coleman expressed regret over the decision "not to ask the crucial question." "A dispassionate researcher," he wrote, "would have gone on to ask the question we did not ask." ...

A commenter noted that this was before discipline became such a problem in schools, and that if black children obeyed a black teacher better, the result could be different nowadays.

Monday, April 27, 2009

The Odd Behavior of Professor Kmiec

I was surprised to see this description in his byline: “Douglas W. Kmiec served as head of and principal deputy in the Office of Legal Counsel from 1985 to 1989.”

In fact, Kmiec headed OLC, first as acting AAG, then as the appointed AAG, for a total of about eight months—from (as best I can tell) roughly August 1988 to April 1989—at the end of the Reagan administration (after Chuck Cooper and most of his deputies had left the office) and the beginning of the Bush 41 administration (until President Bush was able to replace him).

Kmiec never served as “principal deputy” in OLC. The formal designation of “principal deputy” appears not even to have existed when Kmiec was at OLC, and folks who were in OLC at the time tell me that Kmiec was never regarded as the lead deputy. (The only contenders for that role were Sam Alito, who left OLC in March 1987, and Mike Carvin, who left OLC in August 1988.)

Kmiec’s website bio is even more extravagant, as it asserts that Kmiec was the AAG heading OLC from 1985 to 1989: “Kmiec served Presidents Ronald Reagan and George Bush during 1985-89 as constitutional legal counsel (Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice).”

Has Prof. Kmiec gone nuts? Perhaps not. The liberal media seems to accept his claims at face value, so their falsity seems to not have hurt him.

Friday, April 24, 2009

Another Heretical Bishop

The Southern Ohio bishop worried that Forrester's teaching "flies in the face of what I take to be the conviction at the heart of our faith tradition, namely, that we are in bondage to sin and cannot get free without the rescue God has offered us in Jesus, who shouldered our sins on the cross." Breidenthal observed that Forrester's sermons, once publicly available on his home congregation's website, have recently been removed.

Of course, most of Forrester's sermons had already been downloaded by countless curious Anglicans. The Arkansas Democrat Gazette wrote extensively about Forrester's theology, reporting that the proposed bishop "denies that Satan exists," "doesn't believe God sent his only-begotten son to die for the sins of the world," "says that the Koran is sacred," and altered the Apostles' Creed, all while aspiring to become a "successor to the Apostles."

The Gazette quoted Forrester's Buddhist abbot fondly remembering when the Episcopal priest "donned ceremonial garb, kneeled with his hands in a praying position, took Buddhist vows and received his new dharma name" of Genpo.

Thursday, April 23, 2009

Obscenity in Monroe County

The HT tells us that obscenity can indeed be successfully prosecuted in Monroe County.

A man initially charged with felony bestiality for participating in and videotaping a sexual encounter that also involved an unconscious woman and the man’s male Doberman pinscher has pleaded guilty to a less serious charge.

He received a one-year suspended jail sentence.

Under terms of a plea agreement, 41-year-old Thomas Meador pleaded guilty to an amended charge of activity related to obscene performance, a misdemeanor. Two other misdemeanors — sexual battery and maintaining a common nuisance for having a marijuana plant in his East First Street house — were dismissed.

Here's the penalty:

Meador had to give up his two pet dogs as part of the resolution of the case against him. He also must participate in counseling and complete 80 hours of community service work during the next year.

It's noteworthy that the woman involved was being filmed involuntarily. Not much of a crime, apparently.

According to police reports, the woman depicted in the video that police confiscated from Meador after a house-sitter discovered it features a 30-year-old female acquaintance of Meador who was unaware she was being filmed.

The term “obscene performance” is defined by law as something that the average person, applying contemporary community standards, would find appeals to the prurient interest in sex, or depicts sexual conduct in a “patently offensive way.” It also must lack any “literary, artistic, political or scientific value.”

Spring in the Back Yard

Abortion and Torture

Someone should write comparing the "torture memos" to abortion. A question in each is whether a painful technique is justified by some other good. The liberal position is that it is torture to slap a terrorist to stop a nuclear bomb, but okay to slowly dismember a baby to improve a woman's mood.

Sunday, April 12, 2009

Joy and Song and John Ford

From a very very good essay on John Ford movies:

For an atheist, even those functional atheists who make a hobby out of churchgoing but who do not actually believe that any of the Creed is true, cannot sing, not in Ford's sense. People may sing for diversion, or may listen to singing for entertainment, and there's nothing wrong with that. But if you have no sense for the mysterious and transcendent -- if you do not bow in humility before the mysteries of Man and Woman and Child, let alone God -- then you have nothing that will unite you and your fellows in gratitude to sing about, and certainly no one beyond yourselves to sing to. The clodhopping farmers of Drums Along the Mohawk are happy to be together at the barn dance to celebrate a wedding, not just because a wedding is an excuse for drinking, but because any wedding is to them like a moment's reentry into Eden, or a moment's foreshadowing of heaven. The secular world is optimistic, sure, and can provide a lot of fun, sometimes of the harmless kind. But it knows neither hope nor joy.

This has some important relation to the 2007 Korean movie Le Grand Chef which we saw last night with the Wildenbeests, Buddhist/traditionalist though that movie is. Come to think of it, the protagonist of that movie may have to be Buddhist because it is about tradition and loyalty, but his attitude is highly Christian-- that simple work is ennobling, that bodily pleasures and existence in this world are good, and that what is gained by sin is not worth having.

Filling In Potholes Yourself

Do you have gaping potholes on your street and feel the city is not fixing them quickly enough? How about patching them yourself?
That's what a group of residents on Chicago's West Side did Wednesday. Members of the South Austin Coalition bought eight bags of a pavement mix for about $100 and used shovels, rakes and a 250-pound push roller to fill 15 holes on the 4800 block of West Van Buren Street....

For starters, it's not safe for people to work in the street without taking safety measures like putting up orange cones to warn traffic, said Brian Steele, a spokesman for the Chicago Department of Transportation. Secondly, city crews are trained in the art of filling potholes—cleaning them out, pouring in the asphalt mix, making it compact and then rolling the patch with mechanical rollers, not the kind you can push.

The driveway mixture the group used in this case may have only cost a little more than $10 for a 50-pound bag, but the city says the $100-per-ton of high performance cold patch it purchases is worth it.

Thursday, April 9, 2009

Piracy

On the radio I heard NPR interview Gen. Tom Wilkerson on piracy in the Indiana Ocean. Somali pirates just attacked a U.S.-flag cargo vessel. The crew disabled the ship, and the captain volunteered to go away with the pirates as a hostage. He is now in a little boat with 4 pirates, closely watched by the US Navy.

Gen. Wilkerson pointed out that navy patrols aren't going to stop this in advance-- we don't know which ships pirates are in till they attack. He said we should go after their land bases.

Every officer in the armed forces needs to read Schelling's Strategy of Conflict. The solution here is game theory. Here are some possibilities:

1. Tell the pirates that unless they the hostage remains alive they will all be killed, but otherwise their lives will be spared. Then attack them. See if they kill the hostage then or not. Tell them in the initial offer that even if they do not surrender the hostage, so long as nobody shoots him while the US is attacking, their lives will be spared. (By the way: if you think international law doesn't apply to piracy, that means we are free to torture or kill pirates without trial. Traditional international law explicitly allowed their summary execution, at least.)

2. Surround the pirate boat and don't let them land anywhere. They will run out of water. When they are all unconscious, capture them.

If either policy is followed, and if it is made clear that any US-Flag ship attack will fail in this way, then piracy against US vessels will cease, without any need for naval patrols or attack on Somali bases. We could, if we wanted, extend the protection to foreign ships too, perhaps for a large payment.

Wednesday, April 8, 2009

Don't Trust Big Name Law Profs to Know What They're Talking About

A commentor at VC gives an example of how you can't trust a big-name law professors to have his facts straight about the key point of his argument:

"According to Tushnet, there's nothing for the AG to do until a bill lands on the President's desk." Absolutely not correct. (1) Obama claimed during the campaign that he would try to minimize conflicts between the President and Congress by having "his" OLC advise him and Congress of constitutional objections at early stages of bill drafting. (2) Regardless of point #1, OLC has served this function since its inception, and the reason it issued this opinion is that it was serving this function as a matter of course -- this opinion was in no way unusual; in fact, OLC reviews all major items of legislation in their early stages; it has a position purely for this purpose, known as the "bill comment" deputy or "legislative" deputy (Deputy Assistant Attorney General, or DAAG). (3) Regardless of points #1 and #2, having OLC offer its views before bills become final is good policy and good government, as only the Justice Department (as compared to individual Senators and Representatives) has the budget and staff capability to field a standing body of con law experts, and having those experts advise Congress provides both a valuable "second look" and a way to head off legislative-executive conflicts before they reach an advanced stage where positions can harden artificially. (Con law isn't the only area of expertise for which OLC serves this function for Congress but the others aren't implicated in this question, so I won't digress.)

Tushnet, therefore, is wrong as a matter of Obama's campaign promises, as a matter of historical practice, and as a matter of good government practice. Three strikes -- he's out!

Al Roth calls these repugnant transactions and discusses them frequently on his blog. The demand for stimulus means that the cost of being morally opposed to these transactions increases and the margin between what is repugnant and what is not slides outward.

You’ve forgotten some even bigger repugnant markets that would stimulate the economy: burglary, extortion, and murder. In each case, people are currently employed illegally in the activity, though defense against them is mostly legal (”mostly” because pre-emptive violence is illegal). Making them legal would cause many more people to be employed in these activities, and woudl also raise employment by increasing the demand for preventive services.

Nuclear Proliferation Is Not Bad in Itself

Consider two possible responses to the inevitable Iranian nuclearization:
a) The Sunni Arab dictatorships (Saudi Arabia and perhaps Egypt) decide to go nuclear rather than live under Iran as the regional hegemon.
b) The Sunni Arab dictatorships knuckle under the Iranian nuclear umbrella and Teheran becomes the de facto controller of Arab oil supply and much else.
I'm not sure proliferation wouldn't be the least worst option.

Monday, April 6, 2009

The Justice Dept. OLC

IU law prof Dawn Johnsen has been nominated to be head of the Justice Dept.'s Office of Legal Counsel. A vote on her nomination has been delayed a few weeks by Senate Republicans. The news says this is because they don't like her extreme pro-abortion views, or that this is part of some haggling over release of old Bush OLC memos. I just came across something else that seems relevant, though. Wikipedia says that the last Bush nominee for this job, Steven G. Bradbury, was nominated in June 2005, approved by the Senate committee five months later, and then was blocked for over three years by Senate Democrats from having a full Senate vote and remained acting but unconfirmed till the Administration ended in January 2009. Is there any payback going on? If so, Prof> Johnsen may have a few years to wait.

International Law

Eric Posner is good at VC on the liberal, Kohish view of international law as mere hypocrisy. He explains the academic argument by Koh: international public opinion has strong actual effect, and ends up forcing the US government to bend to its will, and so is actual law.

Church Music

This is a long-term post that will collect my ideas on church music. I will start it small, just to get it going.

1. Keep in mind that church music is not a performance for an audience, even an audience of God. The congregation is there too, and they're supposed to be worshipping. If you want a concert for God, do it with no congregation present.

This idea has lots of implications. One is that there should not be instrumental interludes, preludes, or postludes, during which the congregation waits nervously. Another is that beauty is not the main goal (if it were, you'd expel the congregation, because they cough, sing badly, etc.)

2. If there is a solo, let the congregation chip in at the last verse.

3. Don't have undignified children songs with gestures, etc., except for children. It is degrading for adults, insulting the Dignity of Man.

4. Overheads slide person is most important person.

5. People should be able to hear each other singing.

6. Don't jazz up arrangements just for the sake of putting personal
imprint on it. Old arrangements are old for a reason-- they're good.

7. Clapping is good for kids and illiterates. Make sure they can participate somehow.

A Banking Accountng Scam

I just read in NR that some big banks have realized that they can improve their balance sheets by buying toxic assets from each other in a tit-for-tat way at inflated prices. Suppose Apex and Brydox each have bonds worth $20 on the market, and on their balance sheets. Apex sells one to Brydox for $100, and Brydox sells one to Apex for $100. Now they can mark up their assets by $80 each.

Sunday, April 5, 2009

The NPR "All Things Considered" News Style

There used to be serious articles on core doctrines of the faith: progressive revelation, inerrancy, the Trinity, original sin, justification, sanctification, the Day of Judgment, hell, etc., all of them written by learned pastors and theologians.

Today, we're taken on a journey as the free lance author recounts her confusion on some topic (like fashion or global warming or endangered species) and how she decided to investigate this topic and went to a conference put on by evangelicals on her topic.

She tells us how her plane was delayed and she had trouble checking in to the conference hotel, and missed her first session, but how it was okay, cause she ran into the seminar leader in the restaurant and ate lunch with him and how he was nice and funny and normal even though a great man.

Then she details all the difficulties in coming to any firm conclusions on this topic and tells us how nuance and humility are really important and necessary, but we can be sure of this, and then out comes some platitude worthy of a 7th grader in Sunday school.

My comment:

I like that description of the modern, PBS, style of article-- the "one person's experience" style. You should write it up further as a parody and post it on the web. Another good parody would be to do a math or science article in that style.

The style is pernicious not only because it displaces content but because it makes it easy to convey a point of view unfairly, without argument. You simply find or invent anecdotes that make your side look good and the other side bad without seriously engaging the issue. I recently saw Rob Bell's "Bullhorn Man" (at CGS), a good example.

Saturday, April 4, 2009

Comment Moderation in Blogs

This blog doesn't get enough comments to notice, but often some of a blog's comments are as worth reading as the post itself. The problem is that the good comments get lost in the cloud of worthless comments. Thus, a comment moderator is important. He should be ruthless in deleting bad and even mediocre comments. For many blogs, that means 90% of comments will be deleted, and 50% of the commentors will be offended and not comment again. That's fine. It will increase the quality of the blog immensely. Just note in the Policies section that all comments are moderated and that even on-topic comments that add no value will be deleted.

Most people have mediocre minds. They should read blogs, but not write on them. Well, that sounds too severe. Even a mediocre person can contribute comments of great value-- not ideas, but facts. The problem with well-meaning medicrities is that because of their very medicrity they can't understand what's worthwhile and what's not, and don't appreciate the value of new information.

Organizing Conferences

This blog post will collect ideas on how to run conferences. It is adapted from an old post on my old blogsite.

I should remember to send this to the organizer of every conference I attend, well in advance. There is a lot of personal potential benefit from doing that.

1. The conference website should have maps showing the location of the conference buildings and hotels, as well as airports, highways, and the relevant exits. This this should be provided to participants *before* they arrive, since that is when it is useful.

2. The conference website should post all papers as submitted and then allow authors to make updates. This will both ensure that participants can view the papers in advance and prevent authors from submitting work that is too unfinished.

3. Get wireless computer access for anyone who wants it. I find that this is much more common at motels than at universities, for guests.

4. There should be second-tier sessions of successive 5-minute presentations for papers that weren’t good enough to get in the first-tier sessions.

5. A day before the conference, the organizers should email participants telling them the temperature and humidity.

6. There should always be a coffee urn near the session rooms. Coffee is especially useful *before an 8 a.m session*--- not as a coffee break in the late morning.

7. Each building should have a big swinging sign outside and one inside with arrows towards the various rooms. The conference program should be on it, taped open to the appropriate page. Each session room door should have a list of the sessions inside.

8. A lot of these items take some time for the organizer. Think of hte economies of scale, though. It is better to spend 30 minutes of organizer time than 100*6 = 600 minutes of participant time trying to find rooms, buy coffee, figure out the weather report, etc.

9. Make sure there are good spaces for standing around in talking, and a good place to congregate (with chairs and tables and blackboards) for people who are skipping sessions.

10. Email each participant a one-page list of tips on how to give a good presentation. I'll write such a list later and link this to it. It should have things such as "Have a handout".

11. Have a way that participants can do last-minute xeroxing of handouts and scanning in of handwritten diagrams. One way to do this would be to have a box for such requests with folders, a form to fill out requesting the service, and a person to accept money. The payment should be simple so as not to require change-- say, minimum 1 dollar that will xerox 5 copies or scan 5 pages, then 5 dollars for up to 25 copies and 25 pages.

12. Have a list of all participants give out IN ADVANCE so participants can be warned of who is coming that they should know but whose face they might have forgotten. Even better, have this on the web and link to every participant's homepage. This will take care of giving out a list of all email addresses, which should be done if the homepage-link idea is not adopted.

13. Have a box lunch at the end, so people who need to catch planes can take it with them.

14. Each session chair should have a big, cheap, battery-powered clock to put in the room. Again: the cost of the hardware is small relative to the value of the time saved. He shouldn't have to use his attention to make hand gestures or raise signs to the speaker. He should just cut him off at some point, even if that humiliates the speaker.

15. Have long extension cords for electric power
for laptops, trailing into the center of the room. Again: the cost of the hardware is small relative to the value of the time saved.

16. For each paper, next time, have the abstract up on the Web, so listeners can cut-and-paste them into their notes.

17. Send out presentation tips to all speakers.

18 Putting one's name as a footer to slides is a good idea for young
people, as advertisement.

April 7. I see another motivation for dropping the case. I read now that the judge is ordering the prosecutors to give him their background materials even though they want to drop the case. It looks to me as if the judge is outraged and wants to hold the prosecutors in criminal contempt, perhaps sending them to jail for a while. The FBI is accused of misbehavior too. If Holder can stop the proceedings, he'll be able to hold the threat of punishment ordered by himself over the Public Integrity Section and the FBI, and use that as leverage. Thus, the Stevens case might be dropped even if Holder was sure he could get a conviction. What we may have here is that the attorney-general is willing for one criminal to go free (Stevens) to prevent another group of criminals from going to jail (the prosecutors). Stevens, of course, would not object to this-- it's a perfect opportunity for prosecution-defense collusion. The judge, however, has less reason to approve the deal.

I posted this comment at VC.

Brenda Morris joined the Public Integrity Section, Criminal Division, U.S. Department of Justice in September 1991. After working for twelve years as a Trial Attorney with the Public Integrity Section, she was promoted in March 2004 to Deputy Chief for Litigation. In August 2006, Professor Morris was promoted to the position of Principal Deputy Chief.

The acting head of the Criminal Division, who rushed the indictment unethically, was also a career civil servant. It does look as if the careerists have scored another scalp with Stevens.

A question for the lawyers: Is prosecutorial misconduct in a previous trial for the same offence admissible? If it is, Stevens would surely be acquitted in a second trial. Second question: Should it be? (Yes, I would think.)

What has received little discussion here are Holder's motives. I wonder if it has any connection with Senator Dodd. Is failure to report a favorable mortgage a crime? It is, I suppose if favorable mortgage terms are defined as a gift.

I called Robert Feinberg, the former Countrywide executive who blew the whistle on Dodd last summer, but he declined to speak on the record. What he said to me last October is still relevant.

Dodd "got the best of the best," Feinberg told me in the fall, saying that the deal would have saved the Dodds about $77,000 over the life of the loan. It means, for example, that Dodd got a free-of-charge "floatdown" to a better interest rate and that he paid no points.

"There isn't one person that was in my pipeline during that four and a half years that didn't know they were getting VIP service," Feinberg said.

I would really like to find out who is in the Justice Dept. as career and political appointees. The same goes for the rest of the government. How many are Democrats? The public has a right to the info of who is running our government.

April 7. I hadn't been following the Stevens case, and believed the conventional wisdom that he was guilty. Now I really wonder. It seems as if this is the story: Stevens had his friend Allen renovate his house. Allen billed Stevens for $160,000. Allen also let his construction company provide free work, bought furniture, a grill, etc. The government, it seems (this is not clear, and in any case, I don't trust the government at all on this) values the free stuff at $240,000, and I couldn't figure out what the defense valued it at. Allen claims that Stevens knew he was getting renovations cheap; Allen claims he didn't know it.

I believe Stevens, on the renovations. He was not closely involved-- he even gave a power of attorney to a neighbor to sign all the permits and suchlike--- and he did, after all, pay $160,000 for not an entire new house, but just renovations. I don't see how anyone could find him guilty there beyond a reasonable doubt.

On the other hand, he seems clearly guilty of smaller infractions. He knew he had gotten new furniture, a new grill, a salmon statute, etc. If the value of that was over the ridiculously small statutory limit-- $320, I think--- then he is guilty in not reporting it.

The government could easily have proved guilt on the gifts of chattels, without even using Allen as a witness. But that was too small a violation to make the prosecution seem reasonable. In fact, I bet half the Senate is guilty of not reporting $400 gifts from old friends. I hope the Federal Sentencing Guidelines don't impose a big minimum sentence for that. Of course, prosecutorial discretion is supposed to help by preventing de minimis prosecutions.

Here are the exempt categories of gifts:
(1) Bequests and other forms of inheritance; (2) Political campaign contributions; (3) Communications to your offices including subscriptions to
newspapers and periodicals; (4) Consumable products provided by home state businesses to your offices, if those products are intended for consumption
by persons other than yourself; (5) Gifts received prior to your Federal employment; (6) Gifts to your spouse or dependent child totally independent of his or
her relationship to you; (7) Gifts from relatives; (8) Personal hospitality of any individual (see instructions); (9) meals and beverages unless consumed in
connection with a gift of overnight lodging; and (10) Food, lodging, transportation, and entertainment provided by a foreign government within a foreign
country, or by federal, state, D.C., or local governments.

Wednesday, April 1, 2009

The Function of the Office of Legal Counsel

In deciding that the measure is unconstitutional, lawyers in the department's Office of Legal Counsel matched a conclusion reached by their Bush administration counterparts nearly two years ago, when a lawyer there testified that a similar bill would not withstand legal attack.

Holder rejected the advice and sought the opinion of the solicitor general's office, where lawyers told him that they could defend the legislation if it were challenged after its enactment....

Through a spokesman, Holder portrayed the basis for his override of the OLC ruling as grounded in law, not politics.

"The attorney general weighed the advice of different people inside the department, as well as the opinions of legal scholars, and made his own determination that the D.C. voting rights bill is constitutional," Matthew Miller said. "As the leader of the department, it is his responsibility to make his best independent legal judgment, and he believes that although there are reasonable arguments on both sides of the issue, ultimately the bill would constitutionally grant D.C. residents a right to elect a voting representative in Congress."

I finally found a leftwing comment on this. Mark Tushnet says that Holder has not taken any formal, legally binding, action, yet and the bill hasn't passed either, so nothing has happened.

It seems Tushnet is wrong, though. It is true there is not action yet, but that is like saying the "torture memo" was unimportant because when it was issued, no actual interrogation had occurred yet. What Holder has said is that for any DOJ action that depends on the legal question of whether the DC bill is unconstitutional, he is overruling the OLC and the Department is to act as if the bill is constitutional.

A VC comment of mine on AG Holder's decision to back the DC Representation bill in court:

This is of course a much clearer case than in the Bush Administration of the top political leaders overruling the civil service lawyers on a legal stance. So I hope the people who objected to John Yoo's stance call for AG Holder's disbarment even more strongly.

As for myself, though, I find it appalling that anyone thinks the civil service lawyers ought to be making these decisions instead of the elected leaders. The OLC is just a bunch of staffers (mostly civil service staffers-- i.e., lawyers who couldn't get better jobs and who probably have strong ideological preferences). Staffers are supposed to give their best technical expertise to the organization leader, who then makes the actual decision-- in this case, What Shall the Executive Branch's Position be on the DC Bill? I do think the bill is blatantly unconstitutional, but I didn't get elected President and I'm not on the relevant court. I say: Let Holder and Obama defend the position they want in court. And the opinion of his staffers should not be admissible there.

I've set up this blog for myself, as a commonplace book, with the idea that it might
also be useful for outside readers. That is why the topics are idiosyncratic. I see that most of my readers are directed here
by Google searching rather than being regular readers.

I will delete rude comments, and will give less leeway to anonymous comments than to signed ones. I will for now at least
allow stupid and ill-informed comments, though other readers don't enjoy them unless they are so ignorant as to be funny.

I will revise my posts freely, usually without any note that they've been revised. If I make an important mistake in a post that I think
people might refer to, I will note the mistake and correction. But I'm not trying to make this a historical record. In fact, I'd like to merge posts on the same topic
and delete posts not of interest a year later, except that I never get round to doing that.